Freeman

ARTICLE

The Progressive Roots of Zoning

MARCH 28, 2012 by SAMUEL R. STALEY

Before the twentieth century land-use and housing disputes were largely dealt with through courts using the common-law principle of nuisance. In essence if your neighbor put a building, factory, or house on his property in a way that created a measurable and tangible harm, courts could intervene on behalf of a complainant to force compensation or stop the action. This pro-property rights approach maximized liberty and minimized the ability of citizens and elected officials to politicize the development process.

This changed with the Progressive movement. Beginning in the late nineteenth century, Progressives argued that government should become more professional. Rather than being limited, government should use its resources to pursue the “public interest,” loosely defined as whatever the general public decided through democratic processes was the proper scope of government. Legislatures and, by extension, city commissions made up of elected citizens would set policy and goals while a cadre of trained professionals would use the techniques of scientific management to implement policies. One of the leading Progressives of the day, Woodrow Wilson, was skeptical of the value of elected bodies such as Congress because they interfered with scientific management of government.

While many in the twenty-first century might be tempted to dismiss this public-interest view of government—indeed an entire academic subdiscipline, Public Choice, has emerged to demonstrate the foibles of governments and explore “government failure”—Progressive ideas held a lot of appeal at the turn of the twentieth century. In addition to national concerns over industries such as oil, steel, and railroads, local governments were rife with corruption, waste, and inefficiency. Reforms, such as the city-manager form of government, civil-service exams, and in some cases even municipal ownership of utilities, were thought to provide more transparency and accountability than the patronage-laden times of political bosses. (Today municipal ownership is associated with higher costs, less transparency, and little accountability.)

The Progressive movement, however, had another, darker side that would end up being much more important to understanding the widespread acceptance and persistence of government land-use regulation: social control. Jonah Goldberg notes in his contemporary political history, Liberal Fascism, that the Progressive movement was also a social movement. The emergence of Prohibition and immigration restrictions at the same time (during the presidencies of Theodore Roosevelt, William Howard Taft, and Wilson) was not a coincidence. Not only could government professionalize public service, Progressives believed it also should mold the community along “progressive” social norms and goals (collectively decided).

This political climate provided the context for zoning and helps explain the rapid increase of zoning and urban planning more generally throughout the United States. Conventional planning history tends to minimize the political reasons why zoning was broadly accepted, seeing urban planning instead as an application of a more scientific and rational approach to land development. Rather than letting private markets decide what housing should be built, at what heights, at what densities, and where, the “community” would decide through a combination of democratic choice (elected officials developing and approving a zoning plan and code) with professional planning and code enforcement. Ideally the zoning code would be tied to a central comprehensive plan, which would establish the “vision” for the community. Zoning would be used to implement the plan.

Importantly, zoning was a Progressive alternative to the more traditional (and conventional) nuisance-based approach. The first zoning code, for example, attempted to address spillover impacts of property development—externalities—by segregating land uses. The proverbial slaughterhouse in the residential district wasn’t a myth; these juxtapositions of “noxious” uses were common in low-wealth, low-mobility societies and communities. As incomes increased, wealthier households tended to move to neighborhoods that were healthier and safer; incomes afforded greater mobility—first with horses and buggies, then horse-drawn and electric trollies, and ultimately with the automobile. Those left behind were forced to use the courts—which required money, time, and expertise—to marshal arguments and win cases. Zoning was an alternative that promised lower costs and consistency with social goals established at the municipal level through scientific land management.

But the acceptance of zoning wasn’t all about scientific management and the implementation of the public interest. Zoning, in effect, collectivized property rights. The zone established in the code determined what kinds of homes could be built, their size, sometimes even their outward appearance, and the density of neighborhoods. Similarly, zones determined where businesses could locate. Proposals to develop property for uses not designated by the zoning code required an amendment to the zoning map or plan. The amendment process was intended to be cumbersome and laborious because the presumption was always in favor of the publicly approved plan and against spontaneous modifications based on individual initiative.

Overestimating the detail of a zoning code is difficult. Even cities of 10,000 or fewer can have dozens of zones, often a half-dozen or more devoted just to housing types. Separate zones may exist for neighborhood business, commercial office space, neighborhood retail, or regional shopping malls. While some cities and towns have adopted a “pyramid approach,” where the base of acceptable uses is broadened as land is “upzoned” (with commercial and industrial development representing “higher” zones to reflect higher densities), many have adopted “exclusive use” zones that specify in detail what uses are permitted. If your proposed use (say, a home-based doctor’s office or tax preparation service) is not listed as a permissible use, it’s illegal.

One of the consequences of adopting a zoning code is the implicit politicization of all land use by making it a community decision. The decision to “grandfather” a use (such as your home) is a political decision, not one based on private property rights. In fact there is no enforceable individual property or civil right to land use under zoning; courts have routinely upheld the legal right of cities to rezone properties regardless of the wishes of individual property owners. Citizens can object as a matter of due process but cannot challenge the substance of the regulation itself, which is presumed to serve the general welfare of the community. Zoning establishes a legal entitlement granted by government to use property in designated ways.

Thus two forces led to the rapid adoption of zoning throughout the United States in the twentieth century: concerns about the nuisance effect of incompatible land uses and the political desire to control property development. Research by political scientist David Clingermayer, published in the academic journal Public Choice in 1993, found evidence that both the market-failure and political-interest justifications were important to understanding the spread of zoning. The conventional history focuses on nuisances and the “failure” of common law. Edward Bassett, an attorney and reformer in New York City, advocated the nation’s first citywide zoning ordinance when the iconic Equitable Building was erected in Manhattan. The building was tall enough to block sunlight into neighboring buildings and properties, prompting calls to restrict the size and height of buildings. A zoning ordinance would do the trick, Bassett said, taking inspiration from European style “districting.”

The second force, however, may have been equally important, according to Clingermayer. Externalities may have prompted some actions, but the economic interests of the politically powerful were also at play. The skyscrapers popping up along Manhattan’s toney Fifth Avenue troubled upscale clothiers, who were not excited about their wealthy clients mixing it up with the immigrant sweatshop workers toiling away in the high-rises. So Fifth Avenue property owners used the political device of zoning to prevent encroachment by uses they thought were “undesirable” or could lower their property values.

The same scene played out later near industrial Cleveland, Ohio. The suburban village of Euclid was concerned that industrial development radiating outward from Cleveland would encroach on the primarily residential character of its community. So it enacted a zoning ordinance to prevent industrial development. In a landmark 1926 decision by the U.S. Supreme Court, Village of Euclid v. Ambler Realty Corp., the zoning ordinance was upheld as a proper exercise of the police powers of local government to protect the general health and welfare of the community. Ironically, in the wake of the zoning ordinance, Ambler Realty’s property lay vacant until World War II, when an aircraft factory was built by General Motors to support the war effort.

Even before the Supreme Court blessed zoning, the federal government was busy encouraging it as part of a general effort to professionalize development control. Bassett helped the U.S. Department of Commerce (under Herbert Hoover) draft a model zoning ordinance called the Standard State Zoning Enabling Act, which provided a blueprint for cities across the nation. Clingermayer notes that 55,000 copies of the report were printed and distributed during the 1920s. By 1930 800 cities, towns, and villages—covering three-fifths of the nation’s urban population—were governed by a zoning ordinance of some kind.

Regardless of the initial intent, however, the effect of zoning was to fully politicize land-use decisions, as economist William Fischel puts it in the classic, Economics of Zoning and Land Use. This was not surprising: Since zoning hinges on the control over land uses rather than free use of property, the complexity of the zoning maps and the development-approval process has increased exponentially.

Euclid’s first zoning ordinance had six districts based on classes of uses. By 2011 the village had become a city of nearly 50,000 residents with 12 zoning districts, including six residential, three commercial, two industrial, and a campus-institutional district. The initial modest control of land use quickly proved ineffective because democracies are not particularly good at predicting the future. As land uses became more complex and the impacts themselves became more diffuse and hard to categorize, zoning became more layered and sophisticated, with cities and planners attempting to anticipate and accommodate more uses. Euclid’s zoning is relatively modest by national and midwestern standards. San Antonio’s zoning districts have grown from 22 in 1938 to 30 in 1958 to 53 in 2009. New York City has adopted hundreds of zoning districts, including ten residential, eight commercial (plus overlays), three manufacturing, dozens of special districts such as street-specific designations for mixed land uses, and environmental districts such as scenic view districts.

For many cities, zoning has become a never-ending cycle of adding complexity to already complex planning procedures as existing zones fail to accommodate innovations in land use and economic development.

Is there an alternative?

While most American cities, towns, and villages have adopted some form of zoning and comprehensive planning, several counties and municipalities have resisted the Progressive call to centrally plan their cities. Chief among these is Houston, Texas, a city of 2.1 million people in the nation’s sixth-largest metropolitan area of six million. Zoning has gone to popular referendum three times (1948, 1962, and 1993) and failed. Most recently a pro-planning city councilman lost his bid to become mayor, in part because of citizen skepticism of zoning (and its modern-day cousin, Smart Growth).

Despite the lack of zoning Houston is hardly a land-development free for all. Development is regulated through three different processes. The city regulates development through an approval process that focuses mainly on the impact of land development on public services. New developments, for example, must conform to performance criteria for public services such as sewer and road capacity. The second regulatory mechanism is private restrictions on land use adopted through legally enforceable land covenants, or voluntary restrictions on future land uses by current property owners. Covenants can (and often do) exclude specific uses, such as commercial enterprises or businesses. Yet a surprising number of parcels are “unrestricted,” particularly in the older neighborhoods and sections of the city, effectively allowing informal market forces, the third mechanism, to regulate the timing, intensity, and place of development.

By avoiding zoning Houston is able to dramatically speed up the approval process while ensuring the land market responds effectively to economic trends. Under conventional zoning securing a rezoning for a major project can take years. In Houston substantial developments such as multifamily housing can be approved through the performance-approval system and be fully constructed within a year.

All three mechanisms have effectively combined to encourage and manage the growth of one of the nation’s most dynamic cities. Houston, for example, builds housing at higher densities and closer to the traditional urban core than competing cities such as Dallas and Phoenix. Its market-oriented approach to land use has also allowed it to adapt, building multiple employment centers to accommodate new economic challenges and opportunities. While Houston was not immune to the housing market collapse, its housing market has tended to be more resilient and adaptable to changing circumstances.

In sum, many citizens of contemporary U.S. cities take the Progressive foundations of zoning and land-use planning for granted. Yet these Progressive principles on which modern-day zoning rests, and its broad cultural acceptance at the grassroots level, have helped undermine alternative ways of regulating development more consistent with individual liberty and markets. Many of those seeking to roll back federal government encroachment should also be casting a skeptical eye into their own political backyards.

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April 2012

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